New South Wales Supreme Court CITATION : Jansons v Jansons [1999] NSWSC 822 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 4406/98 HEARING DATE(S) : 27/07/99 JUDGMENT DATE : 27 July 1999 PARTIES : Gaida Jansons v Peter Jansons as Executors of Estate of Imants Jansons & Anor JUDGMENT OF : Master Macready at 1 COUNSEL : Ms J. Kerkel for the plaintiff Mr S. Cairns for the defendants SOLICITORS : Collins Cornock & Co for the plaintiff Marina Voncina for the defendants CATCHWORDS : Family Provision. Application by widow.; Consideration of widows' claims and the size of the estate led to the whole estate being given to the widow absolutely. DECISION : Paragraph 28 - 13 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION MASTER MACREADY TUESDAY 27 JULY 1999 NO 4406/98 - GAIDA JANSONS V PETER JANSONS AS EXECUTORS OF ESTATE OF IMANTS JANSONS & ANOR. JUDGMENT: 1 MASTER: This is an application under the Family Provision Act in respect of the estate of the late Imants Jansons who died on 27 March 1998. The deceased was survived by his widow, the plaintiff, and four children and his son in law of the deceased's daughter. The deceased made his last will on 17 March 1993. Under that he appointed two of his children, Peter Jansons and Marite Jansons as executors. He gave all his personal estate to his widow the plaintiff in this action. He bequeathed his house at 15 Greenhaven Drive Emu Plains to his widow, "as long as she wishes to reside there permanently, or till her death. When any of the two above mentioned situations eventuate the said house and land to be sold". 2 The will went on to provide that in the event of the sale of the property the estate was to be divided into six shares, one for the plaintiff, one for the daughter, Marite Jansons, one for the son Janis Jansons, one for the son Ojars Jansons, one for the son Peter Jansons and one for Colin Berning who was the husband of his deceased child. That share was to be held equally between Colin Berning and his children Angela and Etienne. 3 The asset of the estate substantially consisted of the house at 15 Greenhaven Drive Emu Plains. That is a house which has a separate flat in it and it is valued at $180,000. That flat has been occupied by the son, Ojars who at times has paid rent. At one stage it was $75 per week and recently the rent has increased up to $120 a week. There was also furniture in the estate and that was valued on the probate application at $3,000, there was a 1991 Nissan Pulsar car valued at $6,000. The rents which have been collected in respect of the flat have led to the debts in the estate having been paid. The only debts are the costs to which I will shortly refer. 4 There previously was a dispute between the parties as to whether or not the car was held by the plaintiff and the deceased as joint tenants or tenants in common. The reason for the dispute was that there were debts to pay in the estate and an attempt was made to obtain the car and sell it to pay those debts. Those debts have now been paid and the estate does not dispute that the estate's share, if it were held as tenants in common, would pass to the plaintiff. It does not seek to disturb that gift. Given the conversations about the purchase of the car outlined by the plaintiff in her affidavit I, in any event, would have thought it was held by the plaintiff and the deceased as joint tenants and would thus pass to the plaintiff by survivorship. 5 This is contrary to the position which normally applies apt at any particular evidence as to how the property is to be held. See the discussion on this topic in a judgment of mine in Rassick v Tracey 18 September 1998, unreported. 6 There are however costs that have been incurred in these proceedings, for the defendant's part the costs at the conclusion of the proceedings are $10,862 while those of the plaintiff are $16,262. This totals $27,124. If the house has to be sold there will be selling expenses such as solicitor's costs and agent's fees and accordingly it will be seen that the distributable estate if the house was sold would be in the order of $150,000. 7 I will just deal with some matters going to the history of the relationship. The plaintiff was born on 8 February 1930 and is now sixty nine years of age. In 1981 the testator's first wife died. The plaintiff knew the testator and his wife and eventually in 1989 the plaintiff and the testator holidayed at Ayres Rock. After that the plaintiff gave up her job and commenced to work with the testator in his building business. She also moved into live with him in his home. In 1990 the plaintiff sold her home, her former matrimonial home and she distributed part of the proceeds to her children and her grandchildren and used part of the proceeds to contribute towards the expenses of herself and the testator in the acquisition of assets enjoyed by both. As an example she made a considerable contribution and I will deal with that later. It is apparent that she gave $18,333 to each of her five children. 8 On 10th August 1991 the testator and the plaintiff married and on 17 March 1993 the will was made as I have recounted. In 1995 the testator contracted tuberculosis and in the following year in 1996 he was diagnosed with leukemia. Both these problems required extensive medical attention and the testator eventually died on 27 March 1998. 9 In applications under the Family Provision Act the High Court has recently in Singer v Berghouse (1994) 181 CLR set out the two stage approach that a Court must take. At page 209 it said the following: "The first question is, was the provision (if any) made for the applicant 'inadequate for (his or her) proper maintenance, education and advancement in life? The difference between 'adequate' and 'proper' and the interrelationship which exists between 'adequate provision' and proper maintenance' etc were explained in Bosch v Perpetual Trustee Co Limited . The determination of the first stage in the two-stage process calls for an assessment of whether the provision (if any) made was inadequate or what, in all the circumstances, was the proper level of maintenance etc appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors". 10 As directed by the High Court I turn to consider the situation of the plaintiff. She is sixty nine years of age and has no dependents. Her assets comprise cash on deposit of a little under $10,000. She has the furniture which is in the home, some of which was hers and contributed at an earlier time. She lives on a pension amount to $362 per fortnight. Apparently she is in good health. There was some evidence going to the relationship with the deceased. One of the children of the deceased, Marite, gave some evidence about her perception of the relationship and indicated that certainly at the commencement it was a happy relationship. She dealt with a number of disputes between herself and the plaintiff and indicated that towards the end of the relationship the deceased may have felt that he was never left alone by the plaintiff. It may be true but the evidence does not indicate to me that there was any serious rift between the plaintiff and the deceased. 11 It is important to recognise the contribution which the plaintiff has made to the estate of the deceased. The plaintiff in her affidavit evidence suggested that she had $36,000 which she contributed to the relationship. This does not seem to be borne out by the documents that were produced. The bank records show from the sale of the home she retained $18,325 and from her severance pay on retirement the amount which she received ultimately built up to $8,526.73. This totals $26,851. The amounts were withdrawn from these accounts over a period of time up to the period prior to the deceased stopping work once he contracted tuberculosis. The plaintiff still has $10,000 and there is no other source of funds so it would seem that the plaintiff applied at least $16,000 in various purchases which she describes in her affidavit. Basically these were to make some home improvements. There was a new bedroom extension and the purchase of a new fridge and a stove. There was also assistance to build a home for the deceased brother in Latvia, the details of which are not available. There were the costs of a trip to New Zealand and the costs of four trips back to Latvia. There was also a new bedroom suite to which she contributed. The plaintiff also brought a quantity of furniture into the marriage. 12 She also gave evidence of having assisted the deceased at work but there is no detail sufficient for me to be able to assess the extent of that work. Part of it was regarded by the deceased as a contribution towards her share of the purchase of the car. She also contributed $4,000 in cash to the purchase of that car which was in addition to the funds I have mentioned above. 13 The Court has to consider the situation of others having a claim on the bounty of the deceased. These are the beneficiaries to whom I have referred. In this case, contrary to the usual situation the executor gave evidence for both his own situation and that of his brothers and sisters. There was no objection to that course. Apparently Janis Jansons is forty four years old and is married to a wife of a similar age and they have been married for some twenty four years. They have three children aged from 17 to 23 all of whom still have some dependence upon them. Janis was employed by State Rail as a bus driver in Grafton until he was made redundant in 1995 apparently Janis has retrained and today owns a house in Bush Road Grafton with a market value of $100,000. They apparently have no liabilities as they have used the redundancy and superannuation monies to put out the mortgage. Janis owns a 1980 Mazda 626 and they intend apparently to sell their property and move to Sydney in due course. They and their children apparently in good health. 14 Ojars Jansons is forty one years of age. He is married to Paula who is forty years old. They have been married for fifteen years. They have one eleven year old child. Apparently Ojars was working in the family building business until that ceased in 1995. After a period of unemployment benefits he started subcontracting work as a builder. His wife has started working as a receptionist. They apparently have a house and land at Emu Heights purchased for $150,000 and there is a mortgage of $120,000. Ojars owns at 1981 Nissan Bluebird. They also are in good health. Marite Jansons is forty seven years old. She is married to Glen Cleary. They have been married for some two and half years and do not have any dependents. They have a cottage at Lascelles St, Braidwood worth $150,000. They also own some land valued at $65,000. They have a mortgage of $140,000. Apparently they are both on a working holiday travelling around Australia. Both of them have occupations and have worked since leaving school. They have a Land Cruiser worth approximately $10,000. They also are in good health. 15 Colin Berning is the husband of the deceased daughter Zaiga Jansons who predeceased the deceased. He is fifty three and is a teacher. He is Deputy Principal of a school. He has a house worth $170,000 which has a mortgage to the bank of $15,000. He is another house in Toowoomba valued at $70,000 with a mortgage to the bank for $50,000. He has superannuation and he drives a ten year old motor vehicle. He has two children who apparently are not dependent. 16 The executor, Peter, he is thirty four years old. He has been married some fourteen years and he has two children twelve and eleven. He is an accountant by profession and a financial controller by occupation and has worked for some sixteen years. His wife works part time in a nursery. They own a property at 41 Thirteenth St which is valued at $190,000 on which they have a mortgage of some $100,000 with Bank West. They have superannuation and are in good health. 17 There is evidence of some assistance which was given by Peter to his parents. In the affidavit of the plaintiff she makes some suggestion that the deceased's children did not assist her in the day to day care of him between 1995 and the date of his death. I would have thought that would be unlikely, given their separate lives, that they would have taken part in that day to day care. That really was a matter for the plaintiff and which she did quite willingly. 18 Unfortunately there appears to have been some friction between the plaintiff and the children of the deceased. This is not unnatural where the situation of the children of the first marriage have to deal with a second wife. However there is nothing in any of the material that has been produced before me which would in any way detract from the proper claim of the children on the bounty of the testator if the estate is sufficient to accommodate that claim. In general the children are all able to cope and look after themselves, some of them obviously are better off than others. 19 The provisions normally made in respect of widows have been set out in many cases and recently the President of the Court of Appeal in Golosky & Anor v Golosky unreported 5 October 1993, summarised them in the following terms: "In testing the Master's decision it is appropriate to keep in mind the principles which governed the approach which he was obliged to take to the widow's application under the Act, these included: (a) Proper respect as to be paid for the right of testamentary disposition which is the fundamental premise upon which the provisions of the Act are based. That premise requires the Court, out of respect for the continuing right of testamentary disposition, to limit its disturbance of the testator's will to that which is necessary to achieve the purposes of the Act, and not more. See The Pontifical Society for the Propagation of the Faith and St Charles Seminary, Perth v Scales (1962) 107 CLR 9,19: White v Barron and Anor, above, 458, Hunter, above, 576: (b) The purpose of the jurisdiction is not the correction of the hurt feelings of sense of wrong of the competing claimants upon the estate of the testator. The Court is obliged simply to respond to the application of the eligible person who was a member of the testator's household and to consider whether, as claimed, the provision made by the will is inadequate for that person's proper maintenance and advancement in life. See Heyward v Fisher , Court of Appeal, unreported, 26 April 1985; (1985) NSWJB 81. (c) Consideration of other cases must be conducted with circumspection because of the inescapable detail of the factual circumstances of each case. It is in the detail that the answer to the proper application of the Act is to be discovered. No hard and fast rules can be adopted. Nevertheless, it had been said that in the absence of special circumstances, it will normally be the duty of a testator to ensure that a spouse (or spouse equivalent) is provided with a place to live appropriate to that which he or she has become accustomed to. To the extent that the assets available to the deceased will permit such a course, it is normally appropriate that the spouse (or spouse equivalent) should be provided, as well, with a fund to meet unforeseen contingencies; see Luciano (above) 69-70; (d) A mere right of residence will usually be an unsatisfactory method of providing for a spouse's accommodation to fulfil the foregoing normal presupposition. This is because a spouse may be compelled by sickness, age, urgent supervening necessity or otherwise, with good reason, to leave the residence. The spouse provided and will then be left without the kind of protection which is normally expected will be provided by a testator which is both wise and just. See Moore v Moore , Court of Appeal, unreported, 16 May 1984, per Hutley JA; (e) Considering what is 'proper' and by inference what is 'improper' as a provision in a will, it is appropriate to take into account all of the circumstances of the case including such matters as the nature and quality of the relationship between the testator and the claimant; the character and conduct of the claimant; the present and reasonably anticipated future needs of the claimant,; the size and nature of the estate and of any relevant dispositions which may have reduced the estate available for distribution according to the will; the nature and relative strengths of competing claims f testamentary recognition; and any contributions of the claimant to the property or to the welfare of the deceased." 20 In talking of the need to provide a house and a sum for contingencies the President is clearly referring to Wellman and passages in Luciano v Rosenblum and other cases. As was pointed out by the Court of Appeal in Elliott v. Elliott, unreported, 29 April 1986, such a type of provision only applies where it can be said there has been a long and happy marriage and a widow has helped build up the estate of the deceased. It also is accepted that in such cases that she should have a sufficient income to enable her to live in a reasonable degree of comfort and free from any financial worry. 21 In the present case the plaintiff and the deceased lived together for nine years. They were married for six and half of those years. For the purposes of the application of these rules I accept that it was a happy relationship for them. The plaintiff looked after the deceased when he was sick for a period of some three years. She also contributed some $20,000 at least to the family home and the purchase of the car. Certainly one thing has to be said and that is that it was not a long marriage to which the court has referred to in the passages I have quoted above, but nevertheless it was still substantial. 22 The defendants are like all children in their situation concerned that if the property passes to the plaintiff they ultimately will not receive any benefit. Her own children have already benefited once when she sold her home when she married. 23 The plaintiff is sixty nine years old and in this regard I am mindful of what was said by the High Court in White v Barron (1979-1980) 144 CLR 431. At page 444 the court said that: "A capital provision should only be awarded to a widow when it appears that this is the fairest means of securing her proper maintenance. However, the provision of a large capital sum for a widow who is not young, may, in the event of her early death, result in a substantial benefit to her relatives, contrary to the wishes of the testator, when a benefit of another kind would have afforded an adequate safeguard to her personally, without leaving her in a position in which she could benefit her relatives from the proceeds of the legacy". 24 However what I have to consider in the present case is the appropriate provision for a partner of some nine years who in a modest way has contributed to the estate of the deceased. I have already adverted to the Court of Appeal's comments in Golosky v. Golosky where they indicated that they thought a life estate was usually inappropriate. The defendant made a number of suggestions when he gave evidence, when he was asked about how the costs in respect of this matter could be paid. The one realistic suggestion that he made was that he could mortgage the estate property to repay the costs and repay the loan from the rents of the upstairs flat. 25 The difficulty with this is the situation of the plaintiff that if either the mortgage is not met or she needs to move to some other accommodation, in such case under the will she is only entitled to one sixth of the estate. Now on the present value that is about $25,000 and it is not sufficient for her to obtain any type of relevant accommodation. This highlights again what is the proper provision for the plaintiff. Other Judges in this division have all dealt with this problem. For instance in Court v. Hunt, Young J (unreported) 14 September 1987, he said: "Old age is a growing problem in our community and judges who sit in Family Provision Act applications get experience, as well as their own experience in the community, as to what happens when people reach the age when they can no longer look after themselves and one judges the evidence in these sort of proceedings against that background knowledge". 26 His Honour then went on to talk about the assumptions one could make about the fact that frequently, people, once they pass fifty-five, have to change their accommodation and locate themselves either in retirement villages or nursing homes which have different requirements for capital contribution. 27 After talking about the evidence necessary, his Honour went on to say: "In many cases these days a life estate will not be sufficient because it does not cover the situation of the plaintiff moving from her own home to retirement village to nursing home to hospital. Sometimes it is possible for a court to alter a life estate to a more flexible non-capital provision, such as was done by Holland J in Crisp v Burns Philp Trustee Co Ltd, 18 December 1979, unreported, but noted in Mason & Handler Probate Service, at page 13206. Other times the proper provision is for a fee simple gift, realising that this property will be sold and will be turned over into the appropriate property to maintain the widow for the rest of her life. Care also has to be given by those administering the plaintiff's property to ensure that there is sufficient income being raised after tax that will provide for maintenance levies and the other payments that have to be made by the widow". 28 I think, sadly for the beneficiaries in this case that this really is one of those cases where the estate is not large enough to accommodate the plaintiffs' claim and the appropriate orders are as follows: (1) That in lieu of the bequest in the will of the deceased the plaintiff receive a bequest of the whole of the estate of the deceased. (2) The defendants' costs on an indemnity basis be paid or retained out of the estate of the deceased. (3) The exhibits to be returned. oOo Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.